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How
could Roy attack the issuance of the notice, a routine incident
of judicial process?

Manoj Mitta

SHE
got a notice alright for participating in a demonstration
in front of the Supreme Court to protest its Narmada judgment.
But let’s get this clear: author Arundhati Roy is not being
tried for that demonstration nor any other form of opposition
she has expressed so far to the Narmada verdict, in writing
or otherwise. The decision awaited from the court is on something
entirely different. It’s about a tirade she launched against
the court just for issuing the notice to her on a contempt
petition. In her affidavit, she said the notice ‘‘indicates
a disquieting inclination on the part of the court to silence
criticism and muzzle dissent, to harass and intimidate those
who disagree with it.’’

This
prompted the court to shift its attention from her alleged
role in the demonstration to the manner in which she disparaged
the judicial discretion to issue the notice. It observed that
the very ‘tenor’ of Roy’s affidavit appeared to be contemptuous.
At the last hearing earlier this month, the author responded
by daring the court to take action on her affidavit. ‘‘I find
the issuance of the notice insulting to me. I stand by my
affidavit. If you think it is contemptuous, please proceed
against me.’’

Her
dramatic defiance of the court created a sensation making
her appear as a martyr to the cause she espouses of the environment
and tribals ravaged by Sardar Sarovar. The Booker winning
author no doubt deserves admiration for sticking to her critique
of the judgment in the face of the contempt notice. ‘‘I continue
to believe that the judgment disregarded the evidence placed
before the court,’’ she said, with much validity. She may
also be justified in taking part in the demonstration last
December against the judgment, ‘‘even outside the gates of
the Supreme Court.’’ Equally, the bench headed by Justice
G.B. Pattanaik, dealing with the contempt petition, deserves
credit for not questioning the right she asserted in her affidavit
to criticise the judgment and to participate in the demonstration.
So, it would be simplistic to assume that the issue involved
here is a conflict between the court’s contempt power and
Roy’s freedom of speech and expression.

The
real question is: How could Roy attack the mere issuance of
the notice, which is a routine incident of the judicial process?
True, the court could well have dismissed the contempt petition
right in the first instance without issuing notice to her,
activist Medha Patkar and advocate Prashant Bhushan, who were
all alleged to have participated in the demonstration while
the Narmada Bachao Andolan’s plea to review the Narmada judgment
was still pending. But then the court had to take into account
the fact that that was the second time Roy and Patkar were
being accused of committing contempt in connection with the
same case.

The
earlier contempt petition, filed two years ago by the Gujarat
government, targeted Roy’s essay on the Narmada case, ‘The
Greater Common Good’. Though it let her off then ‘‘in the
larger interest’’ of the issue, the court rebuked Roy for
using her literary fame to ‘‘distort orders of the court and
deliberately give a slant to its proceedings.’’ As it happened,
the court erred in making elaborate remarks against her in
that order without issuing a notice to her. In the affidavit
that is now in question, Roy recalled that the court passed
‘‘an insulting order’’ against her in the first contempt case
‘‘without giving me an opportunity to be heard.’’ As for the
current case, her grievance, ironically, is that the court
‘‘displays a disturbing willingness to issue notice.’’

Thus,
Roy’s affidavit, which makes such an issue of the notice,
is itself contradictory on whether the court should have given
the notice or not. She faults the court in both the contempt
cases: in the first for not giving the notice and in the second
for giving the notice. In Roy’s estimation, the court is damned
if it does not and damned if it does. Not surprisingly, the
court ticked her off for ‘sermonising’ to it, that too with
little knowledge of its process.

The
most liberal of judges are likely to be riled when a respondent
lectures to them gratuitously that by issuing the notice,
‘‘the Supreme Court is doing its own reputation and credibility
considerable harm.’’ Another pearl of wisdom Roy offered to
them for their edification is: ‘‘A judicial dictatorship is
as fearsome a prospect as a military dictatorship.’’ She even
mocked the court for finding time for the contempt petition
when the Chief Justice of India refused to spare a sitting
judge for the Tehelka inquiry ‘‘even though it involves matters
of national security and corruption in the highest places.’’
Whatever the shortcomings of the Narmada judgment, Roy could
not be unaware that there have also been cases where the apex
court displayed much creative concern to protect the environment
and tribals. Since she still made such uncalled for and imbalanced
remarks against the court, her own motives in the whole exercise
seem suspect.